GOYAL, J. - (1.) THIS is the second appeal by the defendant- tenant against the concurrent judgments and decree of eviction.
(2.) BRIEFLY narrated the facts are that the original landlord Smt. Mehtab Devi filed a civil suit for arrears of rent and eviction with the averments that the defendant Sh. Jagdish Prasad is the tenant in a `thadi' situated outside her house at Jaipur w. e. f. 8. 5. 1969. The eviction was sought the grounds of default in payment of rent, sub-letting and nuisance. The defendant in written statement while admitting the tenancy pleaded that he is the tenant for the last 25 years. All the grounds of eviction were denied by him. During the pendency of the suit, the landlord Smt. Mehtab Devi died, hence her legal representatives were brought on record. Issue were framed. Evidence was recorded. Learned Additional Civil Judge (Junior Division) No. 3, Jaipur City, Jaipur vide judgment dated 27. 5. 1997 decided issue No. 1 of Sub-letting, issue no. 2-A of default in favour of the plaintiff and while deciding issue No. 2 of nuisance against the plaintiff passed a decree of eviction in favour of the plaintiff. Civil First Appeal No. 74/1997 filed by the defendant-tenant was dismissed vide impugned judgment dated 16. 4. 2001 by learned Additional District Judge No. 3, Jaipur City, Jaipur.
(3.) I have heard learned counsel for the parties. The relationship of the landlord and the tenant between the parties is not in dispute. As per the written statement of the defendant he is the tenant since 1961. According to learned counsel for the defendant-appellant the suit for eviction was filed in July, 1985. It was pleaded in the plaint that rent from 1. 1. 1985 to 31. 7. 1985 is due. Thus the rent for seven months was due at the time of filing the suit according to the plaintiff herself. It was the case of the defendant-appellant that since the plaintiff refused to receive the rent for the months of January a. 02. 1985, he remitted the rent of these two months by money-order on 4. 3. 1985 but the plaintiff refused that money- order also and thus the rent for six months was not due at the time of filing the suit. The trial court observed that it is not prima facie clear that the plaintiff-landlord refused to receive the money-order and in case it is assumed that she refused to receive the money- order, it was the duty of the defendant-tenant to give a notice to the plaintiff to disclose the bank account number or should have deposited the rent under Section 19-A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act ). In the first appeal, the learned Judge did not record any positive finding as to whether the plaintiff-landlord refused to receive the money-order but observed that in case the plaintiff refused to receive the mony-order it was the duty of the defendant to remit the rent for subsequent months by money-order or should have deposited the rent in the court and therefore, the finding of default was affirmed. The submissions made by learned counsel for the appellant on this point have got merit. It is made clear that at the time of filing the suit, only seven months rent was due according to the plaintiff herself. But by subsequent amendment in the plaint it was preyed that rent is due from 1. 1. 1985 to 31. 8. 1986 and thus issue was framed accordingly. But under the provisions of Section 13 (1) (a) of the Act it was to be seen whether the tenant neither paid nor tendered the amount of rent due form him for six months before institution of the suit of eviction on this ground. It was submitted by learned counsel Sh. Bhandari that remittance of rent by money-order was not found proved. But this submission is devoid of merit. even the trial court did not record any definite finding on this point and the First Appellate court also did not record any finding on this point. There was statement of the defendant-tenant as well as he produced two documents-Ex-A1 receipt of money-order and Ex. A2 coupon and in view of this oral as well as documentary evidence remittance of rent for two months by money-order was well proved. It is also significant to say here that the findings on this issue by the courts below are mainly based upon that this remittance was not enough as the tenant did not comply with the provisions of Section 19-A of the Act. This findings, though concurrent is erroneous in view of the Division Bench judgment of this court delivered in Smt. Manak Bai & Ors. vs. Kalyan Bux (1), wherein it was held that it is not obligatory on the part of the tenant to deposit the rent in court under Section 19-A of the Act to escape from liability of eviction despite the fact that the landlord refused the acceptance of rent remitted by money-order. ;